Law Commons^™

Minors, Parents, And Minor Parents, Maya Manian

Maya Manian

Sex-Selective Abortion Bans Are Not Associated With Changes In Sex Ratios At Birth Among Asian Populations In Illinois And Pennsylvania, Arindam Nandi, Sital Kalantry, Brian Citro

Sital Kalantry

Legal prohibitions on sex-selective abortions are proliferating in the United States. Eight state legislatures have banned abortions sought on the basis of the sex of the fetus, 21 states have considered such laws since 2009, and a similar bill is pending in U.S. Congress. These laws have been introduced and enacted without any empirical data about their impact or effectiveness. Prior studies of U.S. Census data found sex ratios among foreign-born Chinese, Korean and Indian immigrants were skewed in favor of boys, but only in families where there were already one or two girls. Using the variation in the timing …

Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret Brinig, Linda Mcclain

Margaret F Brinig

This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs. A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be …

The Consequences Of Abortion Restrictions For Women's Healthcare, Maya Manian

Maya Manian

This Essay challenges the false assumption that abortion care can be segregated from women’s medical care and targeted for special restrictions without any effects on women’s health more broadly. As a matter of medical reality, abortion cannot be isolated from the continuum of women’s healthcare. Yet policymakers and the public have failed to understand the interconnectedness of abortion with other aspects of women’s medical care. In fact, existing abortion restrictions harm women’s health even for women not actively seeking abortion care, but these impacts remain obscured. For example, antiabortion laws and policies have spillover effects on miscarriage management, prenatal care, …

The Concept Of Person In The Law, Charles Baron

Charles H. Baron

The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of “I did not!” – “You did too!” impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces “wrong” by …

Lessons From Personhood’S Defeat: Abortion Restrictions And Side Effects On Women’S Health, Maya Manian

Maya Manian

State personhood laws pose a puzzle. These laws would establish fertilized eggs as persons and, by doing so, would ban all abortions. Many states have consistently supported laws restricting abortion care. Yet, thus far no personhood laws have passed. Why? This Article offers a possible explanation and draws lessons from that explanation for understanding and resisting abortion restrictions more broadly. I suggest that voters’ recognition of the implications of personhood legislation for health issues other than abortion may have led to personhood’s defeat. In other words, opponents of personhood proposals appear to have successfully reconnected abortion to pregnancy care, contraception, …

Functional Parenting And Dysfunctional Abortion Policy: Reforming Parental Involvement Legislation, Maya Manian

Maya Manian

Abortion-related parental involvement mandates raise important family law issues about the scope of parents’ power over their children’s intimate decisions. While there has been extensive scholarly attention paid to the problems with parental involvement laws, relatively little has been said about strategies for reforming these laws. This article suggests using insights from family law relating to functional parenthood and third party caregiving as a basis for crafting more capacious methods of ensuring adult guidance for teenage girls facing an unplanned pregnancy. Recent developments in family law bolster the case for reforming parental involvement legislation to allow teenagers to consult with …

Irrational Women: Informed Consent And Abortion Regret, Maya Manian

Maya Manian

This chapter explores the law’s failure in the twenty-first century to treat pregnant women as capable of making their own decisions concerning whether to have an abortion. The Supreme Court’s 2007 decision in Gonzales v. Carhart, which upheld a federal ban on a type of second-trimester abortion that many physicians believe is safest for their patients, brought the question of women’s capacity for abortion decision-making to the forefront of public legal consciousness. In Carhart, the Court abandoned its previous deference and respect for a woman’s right to be her own decision-maker with regard to abortion and instead determined that a …

Rights, Remedies And Facial Challenges, Maya Manian

Maya Manian

This brief comment extends upon a key point raised by Caitlin Borgmann’s article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, which argues in part that the Roberts Court takes an outcome-driven approach to facial challenges. Building on Borgmann’s analysis, this comment further suggests that the Court not only manipulates the law in an outcome determinative manner, but also exploits the rules regarding the use of as-applied and facial challenges as a means to rewrite substantive law without having to openly overrule prior precedent. This comment focuses on Gonzales v. Carhart as an illustration of the Roberts Courts’ manipulation of procedural …

The Irrational Woman: Informed Consent And Abortion Decision-Making, Maya Manian

Maya Manian

In Gonzales v. Carhart, the Supreme Court upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients. Carhart presented a watershed moment in abortion law, because it marks the Supreme Court’s first use of the anti-abortion movement’s “woman-protective” rationale to uphold a ban on abortion and the first time since Roe v. Wade that the Court denied women a health exception to an abortion restriction. The woman-protective rationale asserts that banning abortion promotes women’s mental health. According to Carhart, the State should make the final decisions about pregnant women’s healthcare, because …

The Concept Of Person In The Law, Charles Baron

Charles H. Baron

The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of “I did not!” – “You did too!” impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces “wrong” by …